438 F.3d 1307 (11th Cir. 2006), 02-13654, United States v. Yates

Docket Nº:02-13654.
Citation:438 F.3d 1307
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Anita YATES, Anton F. Pusztai, Defendants-Appellants.
Case Date:February 13, 2006
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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438 F.3d 1307 (11th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

Anita YATES, Anton F. Pusztai, Defendants-Appellants.

No. 02-13654.

United States Court of Appeals, Eleventh Circuit.

Feb. 13, 2006

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[Copyrighted Material Omitted]

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Sam Heldman, Gardner, Middlebrooks, Gibbons & Kittrell, Washington, DC, Timothy C. Halstrom (Court-Appointed), Montgomery, AL, Ronald W. Wise, Richard F. Matthews, Jr., The Law Office of Ronald W. Wise, Montgomery, AL, for Defendants-Appellants.

Michael A. Rotker, Crim. Div., Linda I. Marks, Office of Consumer Lit., U.S. Dept. of Justice, Washington, DC, Tommie Brown Hardwick, Montgomery, AL, for U.S.

Appeals from the United States District Court for the Middle District of Alabama, D. C. Docket No. 00-00109 CR-N-2

Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON, PRYOR and COX[*] , Circuit Judges.

COX, Circuit Judge:

The court took this case en banc to consider whether witness testimony presented on a television monitor at a criminal trial in Montgomery, Alabama, by live, two-way video conference with witnesses in Australia, violated the Defendants' Sixth Amendment right to confront the witnesses against them. Holding that it did, we vacate the convictions and remand for a new trial.

I. BACKGROUND & PROCEDURAL HISTORY

Anton Pusztai and Anita Yates ("Defendants") were tried in the Middle District of Alabama for mail fraud, conspiracy to defraud

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the United States, conspiracy to commit money laundering, and various prescription-drug-related offenses arising out of their involvement in the Norfolk Men's Clinic, an Internet pharmacy based in Clanton, Alabama.

At the pre-trial motion stage, the Government moved for an order allowing the introduction of testimony from two witnesses in Australia by means of live, two-way video conference. (R.2-248.) In support of its motion, the Government stated that Mr. Paul Fletcher Christian (who allegedly processed customer Internet payments for the Defendants) and Dr. Tibor Konkoly (whose name the Defendants allegedly used on Internet drug prescriptions) were both "essential witnesses to the government's case-in-chief." (Id. at 1.) The Government further submitted: "[a]lthough both witnesses are willing to testify at trial via video teleconference, they are unwilling to travel to the United States. Because they are beyond the government's subpoena powers, the government seeks permission for these witnesses to testify through the use of teleconference facilities." (Id. at 2.)

Defendants opposed the motion, arguing that admission of such testimony would violate their Sixth Amendment rights to confrontation because it would deny them face-to-face encounters with the witnesses against them. (R.2-261; R.3-314 at 3.)1

The district court granted the Government's motion, finding that Defendants' confrontation rights would not be violated because the two-way video conference would allow Defendants to see the witnesses and the witnesses to see Defendants during the testimony. (R.3-314.) The court found that the Australian witnesses were unwilling to travel to the United States for trial, (id. at 2.); the Defendants did not contest this finding. The court also found that the Government asserted an "important public policy of providing the fact-finder with crucial evidence," (Id. at 19.), and that "the Government also has an interest in expeditiously and justly resolving the case." (Id. at 22.)

Because the courtroom was not outfitted with video equipment, the trial was temporarily moved to the United States Attorney's office for the video conference. At trial, Defendants objected on Sixth Amendment grounds to the introduction of the testimony. (R.8 at 347-48; R.11 at 103.) Christian and Konkoly were sworn in by a deputy clerk of the federal district court and acknowledged that they understood that their testimony was under oath and subject to penalty for perjury. The Government then questioned the witnesses by means of two-way video conference. Both Defendants, the jury, and the judge could see the testifying witnesses on a television monitor; and the witnesses could see the temporary courtroom in the U.S. Attorney's conference room.2 Each Defendant's attorney cross-examined both Konkoly and Christian. The jury found the Defendants guilty on all counts. Defendants appeal those convictions.

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In a published opinion, a three-judge panel of this court, applying the rule articulated in Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157 (1990), held that Defendants' Sixth Amendment confrontation rights were violated by the admission of the testimony of these witnesses by means of two-way video conference. United States v. Yates, 391 F.3d 1182 (11th Cir. 2004). The panel vacated the convictions and remanded for a new trial. Id. The Government petitioned for rehearing en banc. This court vacated the panel opinion and granted the petition for rehearing en banc to consider this important constitutional question. United States v. Yates, 404 F.3d 1291 (11th Cir. 2005).

II. ISSUES ON APPEAL AND STANDARD OF REVIEW

We discuss only two of the issues Pusztai and Yates present on appeal.3 First, Defendants contend that their Sixth Amendment rights to confrontation were violated by admission of this testimony taken from witnesses who were physically present in Australia while Defendants were in Montgomery, Alabama. In support of this contention, they maintain that their rights to confront the witnesses face-to-face were violated and that the witnesses were not given a proper oath. The admission of testimony by two-way video conference presents a mixed question of law and fact; therefore, we review de novo Defendants' claim that their Sixth Amendment rights were violated. See Lilly v. Virginia, 527 U.S. 116, 137, 119 S.Ct. 1887, 1900 (1999).

The second issue we discuss is Defendants' contention that the district court erred in denying their motions for judgment of acquittal on the ground that the evidence was insufficient to support their convictions. We review this ruling de

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novo. United States v. Pistone, 177 F.3d 957, 958 (11th Cir. 1999).

III. DISCUSSION

A. The Confrontation Clause

Defendants argue that admission of the video-conferenced testimony was not necessary to further an important public policy and thus violated the rule announced in Craig, 497 U.S. 836, 110 S.Ct. 3157.

The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const, amend. VI. This clause, known as the Confrontation Clause, "guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact." Coy v. Iowa, 487 U.S. 1012, 1016, 108 S.Ct. 2798, 2801 (1988). This right to a physical face-to-face meeting, however, is not absolute and may be compromised under limited circumstances where "considerations of public policy and necessities of the case" so dictate. Craig, 497 U.S. at 848, 110 S.Ct. at 3165. At issue in this appeal is whether the district court's findings demonstrate that denial of physical face-to-face confrontation was necessary to further an important public policy.

In Craig, the Supreme Court upheld, over a defendant's Sixth Amendment challenge, a Maryland rule of criminal procedure that allowed child victims of abuse to testify by one-way closed circuit television from outside the courtroom. 497 U.S. at 858, 110 S.Ct. at 3170. The defendant could see the testifying child witness on a video monitor, but the child witness could not see the defendant. Id. at 841-842, 110 S.Ct. at 3161. The defendant contended that this procedure violated his Sixth Amendment right to confrontation because he was denied a physical face-to-face encounter with the witness. Id. at 842, 110 S.Ct. at 3161-62. The Supreme Court approved Maryland's rule, stating: "though we reaffirm the importance of face-to-face confrontation with witnesses appearing at trial, we cannot say that such confrontation is an indispensable element of the Sixth Amendment's guarantee of the right to confront one's accusers." Id. at 849-850, 110 S.Ct. at 3165-66. The Court held that "[t]he Confrontation Clause reflects a preference for face-to-face confrontation at trial, a preference that must occasionally give way to considerations of public policy and the necessities of the case." Id. at 849, 110 S.Ct. at 3165. The Court explained, "a defendant's right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured." Id. at 850, 110 S.Ct. at 3166.

The Government offers two arguments for why we should not apply the Craig rule in this case. First, it maintains that Craig should not apply because the testimony in this case was presented by two-way video conference rather than one-way video conference as in Craig. Second, it asserts that two-way video conference testimony is superior to testimony taken by deposition under Federal Rule of Criminal Procedure 15 in protecting the confrontation rights of defendants; therefore, it should be admissible whenever Rule 15 deposition testimony would be. We disagree with both arguments.

The Government relies on United States v. Gigante, 166 F.3d 75 (2d Cir. 1999), a case in which the Second Circuit approved the use of two-way, closed circuit television to present the testimony of a witness from an undisclosed location outside the courtroom. The Gigante court declined to apply the Craig standard, reasoning

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